Adcock v. Life Assur. Co. of Carolina , 31 N.C. App. 97 ( 1976 )

228 S.E.2d 654 (1976) 31 N.C. App. 97

Harry ADCOCK, Administrator of the Estate of Elbert Abson Adcock
v.
LIFE ASSURANCE COMPANY OF CAROLINA.

No. 7616DC354.

Court of Appeals of North Carolina.

October 6, 1976.

Mason, Williamson, Etheridge & Moser by Andrew G. Williamson and Daniel B. Dean, Laurinburg, for plaintiff.

Womble, Carlyle, Sandridge & Rice by John E. Hodge, Jr., Winston-Salem, for defendant.

BROCK, Chief Judge.

Defendant first contends that the trial court erred in not admitting the records of deceased's hospitalization six months prior to the shooting. Defendant maintains the admission of this evidence would tend to establish in the deceased a despondent and suicidal state of mind.

"Whether the existence of a particular state of affairs at one time is admissible as evidence of the same state of affairs at another time, depends altogether upon the nature of the subject matter, the length of time intervening, and the extent of the showing, if any, on the question of whether or not the condition had changed in the meantime. The question is one of materiality or remoteness of the evidence in the particular case, and the matter rests largely in the discretion of the trial court." 1 Stansbury, N.C. Evidence (Brandis rev.), § 90.

A discretionary ruling of the trial court is conclusive on appeal, absent a showing of abuse of discretion or some imputed error of law or legal inference. Privette v. Privette, 30 N.C.App. 41, 226 S.E.2d 188 (1976); 1 Strong, N.C. Index 2d, Appeal and Error, § 54, pp. 213-14.

We find no abuse of discretion in the court's ruling that medical evidence of a depressed state of mind was too remote to be of probative value as to a suicidal state of mind six months later. Nor do we find any imputed error of law or inference of law. The court found as fact that the decedent had adjusted to the cause of his despondency and was planning and preparing for a future that reflected his adjustment. These findings based on competent evidence sufficiently show a change of condition in the decedent's state of mind that undermines any materiality the evidence in the hospital records might have had.

The fact that the hospital records were excluded as remote prior to the evidence that established a change of condition does not affect our holding. The exclusion of evidence is not prejudicial when it appears that it could have no material bearing on the issue or could not alter the rights of the parties or affect the result, or where appellant fails to show that the excluded evidence was competent or material. 1 Strong, N.C. Index 2d, Appeal and Error, § 49, pp. 198-99.

We find no merit in the defendant's other contention that the trial court's findings of fact and conclusions of law were unsupported by or contrary to the evidence and the law. Where a suit is brought on a life insurance policy of general coverage but making suicide an excepted risk, the burden is on the defendant insurer to establish suicide by a preponderance of evidence. Starkey Paint Co. v. Springfield Life Insurance Co., 24 N.C.App. 507, 211 S.E.2d 498 (1975); 2 Stansbury, N.C. Evidence (Brandis rev.), § 224. In the case at bar there was sufficient evidence presented to enable the trier of fact to find that suicide was not the only logical or possible manner of death. Thus the court's conclusion that defendant failed to carry its burden of proof was a proper one.

The judgment of the trial court is

Affirmed.

VAUGHN and MARTIN, JJ., concur.